KEYWORD: Guideline B
DIGEST: There is a rebuttable presumption that federal officials and employees carry their duties
in good faith. A party seeking to rebut that presumption has a heavy duty on appeal.  Given the
record, the Judge’s finding of deliberate falsification is sustainable.  Adverse decision affirmed.
CASENO: 07-18065.a1
DATE: 11/18/2008
DATE: November 18, 2008
In Re:
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Applicant for Security Clearance
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ISCR Case No. 07-18065
APPEAL BOARD DECISION
APPEARANCES
FOR GOVERNMENT
James B. Norman, Esq., Chief Department Counsel
FOR APPLICANT
Pro Se
The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security
clearance.  On May 9, 2008, DOHA issued a statement of reasons (SOR) advising Applicant of the
In support of his appeal, Applicant attaches new documentary evidence.  The Board cannot consider this new1
evidence on appeal.  See Directive ¶ E3.1.29.
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basis for that decision—security concerns raised under Guideline B (Foreign Influence) and
Guideline E (Personal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as
amended) (Directive).  Applicant requested a hearing.  On September 9, 2008, after the hearing,
Administrative Judge Noreen A. Lynch denied Applicant’s request for a security clearance.
Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30.
Applicant raised the following issues on appeal: whether Applicant was denied due process
because Department Counsel acted improperly; whether the Judge’s findings are based on substantial
evidence; whether the Judge erred in concluding that Applicant had deliberately provided false or
misleading information to an investigator; and whether the Judge’s adverse clearance decision under
Guideline B is sustainable.1
(1) Applicant contends that he was denied due process because Department Counsel acted
improperly.  In support of that contention, he argues that the Department Counsel engaged in an
aggressive cross-examination of his character witness, asking him questions which Applicant had
not anticipated him asking.  The Board does not find this argument persuasive.
There is a rebuttable presumption that federal officials and employees carry out their duties
in good faith.  See, e.g., ISCR Case No. 00-0030 at 5 (App. Bd. Sep. 20, 2001).  A party seeking to
rebut that presumption has a heavy burden of persuasion on appeal.  Applicant has not met that
heavy burden in that he fails to identify anything in the record below that indicates or suggests a
basis for a reasonable person to conclude that Department Counsel acted improperly, unfairly or
unprofessionally.  See, e.g, ISCR Case No. 06-26704 at 2 (App. Bd. Jun. 19, 2008)(no denial of due
process where Department Counsel “subjected [Applicant] to an aggressive cross-examination which
elicited adverse details about his alcohol use that went beyond the specific facts recited in the SOR
and the documentary exhibits, and undermined his credibility with the Judge”); ISCR Case No. 03-
04927 at 3 (App. Bd. Mar. 4, 2005)(no denial of due process where pro se Applicant claimed “she
was no match for the ‘very serious and prepared professionals’ who represented the government”);
ISCR Case No. 03-21262 at 2-3 (Jul. 10, 2007)(no denial of due process where pro se Applicant
claimed that “Department Counsel raised his voice . . . and attempted to sway the Judge with
emotional arguments”).
(2) Applicant argues that the Judge’s adverse clearance decision should be reversed because
the Judge erred with respect to several of her findings.  The Board does not find this argument
persuasive.
The Board’s review of a Judge’s findings is limited to determining if they are supported by
substantial evidence—such relevant evidence as a reasonable mind might accept as adequate to
support such a conclusion in light of all the contrary evidence in the record.  Directive ¶ E3.1.32.1.
“This is something less than the weight of the evidence, and the possibility of drawing two
Decision at 8.2
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inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from
being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620,
(1966).
After reviewing the record, the Board concludes that the Judge’s findings are based on
substantial evidence, or constitute reasonable characterizations or inferences that could be drawn
from the record.  Applicant has not identified any harmful error likely to change the outcome of the
case.  Considering the record evidence as a whole, the Judge’s material findings of security concern
are sustainable.  See, e.g., ISCR Case No. 06-21025 at 2 (App. Bd. Oct. 9, 2007).
(3) Applicant contends that he did not deliberately provide false or misleading information
to an investigator, when he stated he had not called or written his siblings in Iraq since he came to
the United States in the 1990s.   In support of this contention, he argues that allegation resulted from
a misunderstanding.  Applicant has not demonstrated that the Judge erred.
A review of the Judge’s decision indicates that she considered the circumstances surrounding
the allegation in light of Applicant’s explanation and the record evidence as a whole, and concluded
there was a sufficient basis to find that Applicant had provided false or misleading information:  
Applicant listed in his security application that he maintained contact
with his [siblings] who are residents and citizens of Iraq.  He later
changed that information in an interview with an investigator in 2007.
He had an opportunity to clarify or correct this information in
interrogatories in 2008.  He made certain corrections but did not 
change the reference to contact with his [siblings].  At the hearing,
he was inconsistent with his statements and answers to questions
by counsel.  I allow for the second language and possible
misunderstandings, but I did not find Applicant credible, especially
in light of his strong desire to maintain employment.2
Given the record that was before her, the Judge’s finding of deliberate falsification is
sustainable.
(4)  Applicant argues that the Judge’s adverse decision should be reversed based on his
favorable character references, his good job performance, and his strong ties to the United States.
Applicant’s arguments in that regard do not demonstrate that the Judge erred.
Once the government presents evidence raising security concerns, the burden shifts to the
applicant to establish mitigation.  Directive ¶ E3.1.15.  The presence of some mitigating evidence
does not alone compel the Judge to make a favorable clearance decision.  As the trier of fact, the
Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs
Decision at 10.3
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the unfavorable evidence, or vice versa.  An applicant’s disagreement with the Judge’s weighing of
the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to
demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary,
capricious, or contrary to law.  See, e.g., ISCR Case No. 07-00434 at 3 (App. Bd. Jul. 18, 2008).
A review of the record indicates that the Judge weighed the mitigating evidence offered by
Applicant against the seriousness of the disqualifying circumstances and considered the possible
application of relevant conditions and factors.  She reasonably explained why the evidence which
the Applicant had presented in mitigation was insufficient to overcome the government’s security
concerns.  The Board does not review a case de novo.  The favorable record evidence cited by
Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary
to law.  See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007).  The Judge examined the
relevant data and articulated a satisfactory explanation for her decision, “including a ‘rational
connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United
States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines,
Inc. v. United States, 371 U.S. 156, 168 (1962)).  Therefore, the Judge’s conclusion that “it is not
clearly consistent with the national interest to grant Applicant eligibility for a security clearance”3
is sustainable.  Department of the Navy v. Egan, 484 U.S. 518, 528 (1988).
Order
The decision of the Judge denying Applicant a security clearance is AFFIRMED.
Signed: Jean E. Smallin          
Jean E. Smallin
Administrative Judge
Member, Appeal Board
Signed: William S, Fields        
William S. Fields
Administrative Judge
Member, Appeal Board
Signed: James E. Moody          
James E. Moody
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Administrative Judge
Member, Appeal Board